Propositions for EU copyright legislation
The European Commission has opened a public consultation on the review of the EU copyright rules, open to all stakeholders. Their questionnaire is a bit lengthy, but fortunately, according to the Quadrature du Net (a French advocacy group for Internet freedom), you can also answer with a free-form text. So I did just that, taking it as an opportunity to write down some things I would like to see change in the EU copyright legislation. My answer is now published among the 4213 (!) user replies.
What I propose here is my moderate program for copyright reform. My actual views are a bit more extreme, and, within an idealized model of society, I am not entirely sure that copyright is a good thing altogether, in the longer term. Yet this is not a program for an idealized world, but concrete action steps which I feel should be taken as soon as possible to cut down on current copyright legislation's most blatant excesses, so as to reestablish a minimum amount of equilibrum between the interest of right holders and those of the general public.
Yet, I have obviously no hope that this letter will have any impact, because my view are so distant from current EU copyright policies. I would nevertheless like to invite you, dear reader, to submit your opinion to the consultation, while there is time (the deadline is Wednesday, March 5th), even though it feels a bit like you are writing a letter to Father Christmas. Not telling the European Commission about your views, and not giving them the opportunity to ignore them, will limit your right to complain legitimately about what they are doing on copyright issues.
This being said, here are the concrete changes which I suggested. This Web version includes hyperlinks and corrections to the original text.
Copyright term reduction
I understand copyright as a balance struck between society's desire to use, distribute, adapt upon and perform creative works, and the necessity to incentivize creators by granting them a temporary monopoly over some rights on their work.
Current European legislation protects the rights of authors until seventy years after their death. This is disproportionate: such a long duration is certainly not required to encourage or sustain any reasonable form of creation, whereas society is substantially missing out on the opportunity to benefit from many works of art over this long period.
The only explanation I can see to the current state of affairs is that it was achieved through organized lobbying by right holders, which faced little resistance: because the general public does not know about the public domain or realize its importance, and because the organizations which attempt to protect it have a comparatively small economic weight.
I would therefore be in favor of restricting the duration of copyright in European member states, in all circumstances, to no more than 25 years after publication, performance or broadcast.
Protection of orphan works
Since the Berne convention, there are no formalities required to assert copyright over your work; so that, for works with no known or reachable right holder, one must assume by default that the work is protected. Hence, the public's use of the work is limited to protect the monopoly of an absentee right holder: one cannot republish, digitize, adapt upon the work, for fear that the right holder may later resurface and sue for damages.
I am not in favor of introducing mandatory registration formalities for copyright, as I fear they would penalize the less-organized forms of creation (street art, amateur artists, etc.) who would probably not follow them.
However, I believe that, once the creator of a work has ceased to distribute it (out of print books, unmaintained software, etc.), and it has been impossible to contact them for some period of time, copyright protections on the work should lapse. The rationale would be analogous to that of acquisitive prescription: the right holder has shown insufficient motivation to exercise their exclusive rights.
In particular, reappropriation of unavailable works in a for-profit fashion, such as the French ReLIRE, do not serve the public interest.
No protection for public organisms
If a work has been created by employees of European Union member states or European institutions during the course of their duties, it should not enjoy any copyright protection. The reason for this is that there is no need to incentivize or finance such creation, and as this is the best regime to allow the public to benefit from such works created using public money.
This would have many positive effects. As a first example, this would encourage the dissemination of publicly financed research, and ensure that copyright cannot be leveraged by academic publishers to restrict the transmission of scientific knowledge to the general public who indirectly paid for it. Hence, this would contribute to the decline of closed-access scientific venues, which would help decrease the proportion of public research money spent on subscription fees.
As a second example, this would ensure that open data efforts from public organisms must remain really open. This would not not prohibit the sale of extended datasets so that the cost of publishing open data is covered by those who make use of it, but it would ensure that copyright cannot be used as a weapon to limit the further redistribution of such datasets, as could be attempted by short-sighted organisms in a foolish attempt to reap easy profits at the public's ultimate expense.
Digital rights management
Digital rights management (DRM) are a set of technologies to limit the copying of digital content in an effort to enforce copyright. Works burdened with DRM usually require specific software, operating system, hardware (sometimes from a specific manufacturer), in order to be consumed. Further, some such technologies require the user to remain in contact with the right holder's server to authorize every use of content, so that the works become unusable once technical intermediaries discontinue the service or remain out of business.
DRM is present on a variety of digital contents, such as e-books (Amazon), video games (Steam), movies (most DVDs), etc. While I respect the right of manufacturers and right holders to offer such content under such conditions, it seems paramount to me that customers be aware of the nature of what they are buying. Right now, the public is not well-informed about the nature and existence of DRM, and the presence of DRM is seldom clearly advertised.
I would argue that any creative work on sale should indicate prominently to the purchaser which equipment is required to read it: software, hardware from a specific manufacturer, and more generally any technology that it is an open standard which can be re-implemented by anyone (i.e., not requiring the payment of any royalties).
Further, if a creative work is offered in a scrambled form designed to be unusable without additional keys provided every time the content is consumed, it should be mandatory to label such offers as "rental" rather than "sale", as continued enjoyment of the work by the customer depends on the provider's will to further allow it.
Current European directives, such as Directive 2001/29/EC, have overreaching provisions which prohibit circumventing DRM, providing technical means to enable it, etc. This often prohibits legitimate cases of DRM circumvention, such as those required for interoperability. Prohibiting copyright infringement is sufficient ; no additional protection should be granted to DRM technologies.
Freedom of panorama
The "freedom of panorama" exemption restricts the copyright protection of works of art permanently located in a public place. This exemption exists in some member countries but not others. European legislation should be harmonized by providing freedom of panorama in all member states, in its strongest form: there should not be any copyright protection of works of art permanently located in public space, as such copyright protection substantially interferes with the public's right to photograph and film in public space.
A huge amount of creativity nowadays is expressed by producing works of art that current copyright legislation consider to be derivative: remixes of well-known songs, fan fictions, videos incorporating sequences of protected video games, etc. The legal status of such works is entirely unclear, and right holders can leverage this to discourage, or censor, such creative works.
In my opinion, the need to incentivize creation through copyright does not justify such restrictions on derivative art forms. Indeed, such transformation has always been an important factor of creativity (folk tales, reuse of musical themes, etc.). It is regrettable that copyright has crept from restrictions on "fixed-form works" to restrictions on certain derivative uses such as performance and translation, to eventually impose overbearing theoretical restrictions on any form of derivative use, which I believe does not reflect the interest of society.
I believe the scope of copyright protection should be changed so that it does not impede transformative uses that cannot harm the interests of the creator. For instance, fan fictions certainly cannot be read as a substitute to the original book, nor can most remixes replace the original song, nor playthrough videos act as a substitute to a video game.
Not-for-profit sharing of copyrighted works between private individuals is a widespread practice in European member states. It was essentially uncontroversial in the times where works of art were fixed to a physical medium (such as books, CDs, etc.), because this made copying unpractical so that sharing was essentially limited to lending.
For digital works, such practices raise the question of how creators should be financed. However, prohibiting it altogether, as is currently done, does not seem sensible: it is disconnected from current practice and from the public's perception of right and wrong. I am unsure about whether a middle ground could be found with solutions such as the French "licence globale" proposals which propose to finance artistic creation through taxation and redistribution to creators: indeed, I do not see how to design a scheme of this kind while ensuring that it finances all artists fairly, including independent artists not registered to any copyright collection society.
I am nevertheless confident that new ways to finance creation, such as crowdfunding, will emerge; that the public is aware of the fact that they need to pay the creators of works they enjoy, and that private artistic sponsorship will increase as technologies reduce the friction of online payment. Hence, I would be in favor of a copyright exemption covering the not-for-profit exchange of creative works between private individuals, as a solution preferable to the current state of affairs.
Fair agreements between copyright collective and their members
Copyright is usually held, not by artists, but by copyright collectives of which they are members. Some of these, such as the French SACEM, require that their members automatically assign copyright to them on all their future creative works; terminating one's contract with SACEM is a lengthy and complicated process. [Author's note: There seems to be no up-to-date and reliable information available online about this...]
Such agreements are nothing short of creative servitude; the signer agrees to the transfer of all the fruits of their creativity, with little limits, uncertain compensation, for an indeterminate amount of time. Contracts of this kind should be deemed unfair and considered null and void.
Transferring preemptively one's copyright on one's future creations should be impossible except within employment contracts, in which case this arrangement should be restricted to the hours worked by the employee; additionally, resignation should always be possible, and all relevant labour protection laws should apply.